The petitioner is a company engaged in the business of manufacturing and exporting garments. For the purpose of its business, the petitioner maintains a factory under the Factories Act. According to the petitioner, the factory employs about 1000 workers of which about 750 are female workers. The petitioner's buildings were assessed to building tax under the Kerala Building Tax Act. The petitioner claimed exemption from tax on the ground that the buildings are principally used as a factory. The petitioner was granted exemption as a factory only in respect of a part of the buildings. Certain other buildings allegedly used as canteen, toilets, shelter and washing room were not exempted as part of the factory on the ground that the same are not part of the factory buildings. The matter was referred to the Government as required under sub- section (2) of Section 3, pursuant to which Ext. P4 order has been passed by the Government refusing exemption in respect of a building stated to be used as a hostel, which, according to the Government, was functioning on a commercial basis. The petitioner is challenging Ext. P4 order.
2. According to the petitioner, the particular buildings for which exemption has been denied are provided for washing facilities, facilities for sitting, canteens, shelters, rest rooms and launch rooms which are mandatory required to be provided in a factory as per Sections 42 to 48 of the Factories Act. According to the petitioner, since as per the Kerala Building Tax Act, buildings used principally as factories are eligible for exemption, the buildings which are provided as per the mandatory provisions of the Factories Act are also included in the exemption provision, which cannot be separated from the factory itself.
3. The learned Government Pleader stoutly opposes the claim of the petitioner. According to him, exemption is granted in respect of factory. The term 'factory' is not defined in the Kerala Building Tax Act. Therefore, the definition in the Factories Act has to be adopted for this purpose also. Section 2(m) of the Factories Act defines 'factory' as a place where manufacturing process is being carried on. Therefore, as per the provisions of Section 3(1)(b), only those part of the buildings of the petitioner, where manufacturing process is being carried on, are eligible for exemption under the Act. The learned Government Pleader also points out that even apart from that, in the reply statement dated 12-3-1997 submitted by the petitioner themselves before the Tahsildar, it has been specifically stated that the building in question is a hostel building for accommodating their employees. The learned Government Pleader argues that there is no provision in the Factories Act, which requires the petitioner to provide accommodation for its employees and therefore the hostel building for accommodating the petitioner's employees is not eligible for exemption. He also relies on a Division Bench decision of this Court in W.A.No.1747/2006, wherein this Court has held that hostel attached to a nursing college is not eligible for exemption as a building used for educational purpose, despite the contention raised in that writ appeal that for the purpose of obtaining sanction from the Indian Council, the college is mandatorily liable to provide accommodation for its students also.
3. I have considered the rival contentions in detail.
4. Section 3(1)(b) of the Kerala Building Tax Act reads thus:
"3. Exemptions:- (1) Nothing in this Act shall apply to--
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(b) buildings used principally for religious, charitable or educational purposes or as factories or workshops."
Section 2(m) of the Factories Act defines 'factory' thus:
"(m) "factory" means any premises including the precincts
(i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or
(ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on,--
but does not include a mine subject tot he operation of the Mines Act, 1952 (35 of 1952) or a mobile unit belonging to the armed forces of the union, a railway running shed or a hotel, restaurant or eating place."
The words used in Section 3(b) is buildings used principally as factories. The word 'principally' has to be given some meaning if we are to purposefully interpret the Section. Of course, the learned Government Pleader would argue that the word 'principally' qualifies only religious, charitable or educational purposes, I am unable to agree. According to me, the word 'principally' qualifies all the expressions in that sub-section, which include factories also. The existence of the word 'principally' would go to show that if a building is principally used as a factory the ancillary buildings attached to the factory would also be eligible for exemption. Therefore, the contention of the learned Government Pleader based on the strict interpretation of the definition of 'factory' cannot be applied for deciding the question as to whether certain other buildings provided as ancillary to a factory are also eligible for exemption.
5. Now, I shall consider whether any other building attached to a factory is also eligible for exemption under Section 3. Under Section 42 of the Factories Act, in every factory, adequate and suitable facilities for washing for the use of the workers thereon are to be provided by the owner of the factory. Under Section 43, a factory is mandatorily liable to provide suitable places for keeping cloth not worn during working hours and for drying of wet clothing. Under Section 44, in every factory, the owner of the factory is liable to provide suitable arrangements for sitting for all workers obliged to work in a standing position so that the workers can take advantage of opportunities for rest, which may occur in the course of their work. Under Section 46, in factories where more than 250 workers are ordinarily employed, the employer is liable to provide a canteen. Under Section 47, shelters, rest rooms and lunch rooms are mandatorily to be provided by the owner of the factory. Under Section 48, in every factory where more than 30 women workers are ordinarily employed, suitable room or rooms for the use of children under the age of six years of such women are liable to provided. I am of opinion that for the purpose of Section 3 of the Kerala Building Tax Act, the definition of 'factory' has to be read in conjunction with Sections 42 to 48. Since an owner of a factory is statutorily liable to provide building for the above purposes, failing which the occupier of the factory is liable for penal consequence, the buildings provided for those purposes would also form part of the factory. This is all the more so since the wording used in Section 3(b) is buildings used 'principally' as factories. Therefore, I am of opinion that buildings provided by the owner of a factory to satisfy the statutory requirements under Sections 42 to 48 are also eligible for exemption under Section 3.
6. The decision relied on by the learned Government Pleader, namely, W.A.No.1747/2006 does not lay down any different law. In that case, there is no statutory requirement as in the Factories Act. It is only an instruction given by the Indian Nursing Council. Further, in the decision of Mother Superior Adoration Convent v. Government of Kerala and another, [2008 (1) KHC 345 (DB), this Court has held that since buildings of convents are generally used for religious purposes and if one of the buildings is used for residence of inmates, it should be treated as one used for religious purposes and would qualify for exemption. If any building is used for commercial activity, it should be segregated and taxed. The ratio of that decision is applicable to the facts of this case in so far as the purposes mentioned in Sections 42 to 48 of the Factories Act are purposes integral to the running of a factory.
7. However, the above finding is not sufficient to dispose of this original petition in favor of the petitioner in view of the definite contention raised by the learned Government Pleader to the effect that in the reply statement submitted by the petitioner before the Tahsildar, Kunnathunadu Taluk, the petitioner themselves had referred to the building in question as a hostel building for accommodating their employees. If this building is a hostel building for accommodating the employees of the petitioner, I do not think that the petitioner would be eligible for exemption from tax in respect of that building. But, learned counsel for the petitioner would argue that it was only a mistake and actually the building in question is one intended for compliance with the statutory requirements under Sections 42 to 48 of the Factories Act. That is a question of fact which has to be ascertained by the Government.
8. Accordingly, the original
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petition is disposed of as follows: Ext. P4 order is quashed. The Government is directed to re- consider the matter in the light of the above findings. Government shall get the buildings inspected by the concerned Tahsildar to see whether the buildings are buildings constructed for satisfying the statutory requirements of Sections 42 to 48 of the Factories Act or whether the same are buildings used as hostel for accommodating the petitioner's employees. If the Government comes to a finding that the buildings are buildings referred to in Sections 42 to 48 of the Factories Act, the petitioner shall be given exemption. However, if the building is a hostel building for accommodating the employees of the petitioner, such building would not be eligible for exemption. Fresh orders shall be passed after inspection, supplying a copy of the inspection report to the petitioner and affording the petitioner an opportunity of being heard as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment.